Chen (Migration)

[2019] AATA 6599

Chen (Migration) [2019] AATA 6599 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Youbin Chen

CASE NUMBER:  1814404

DIBP REFERENCE(S):  BCC2018/639639

MEMBER:Joseph Lindsay

DATE:3 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 December 2019 at 3:16pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – incorrect answers in the visa application – bogus document – tertiary qualifications – English language requirements – effort to correct the incorrect information – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 5, 97-105, 107-109
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. In his application, the application provided a copy of the Department’s decision dated 16 May 2018.  

3. The applicant was invited to have a hearing before the Tribunal on 3 December 2019 at 2:00pm. However, the applicant failed to appear for the hearing. Prior to the hearing, on 21 November 2019 the applicant’s representative contacted the Tribunal to advise that the applicant would not appear because the applicant was suffering illness. The applicant’s representative provided no medical evidence in support of his claim that the applicant was suffering illness. In any event, the applicant did not attend the hearing and the agent did not attend the hearing. There has been no further contact at all from either the applicant or the agent with the Tribunal.

4. If the applicant had appeared at the hearing, the Tribunal would have had the opportunity to ask questions of the applicant. The Tribunal would have had the opportunity to ask the applicant why he claimed that he had completed a Bachelor of Commerce at the University of Otago when it appears that he has done no such thing.

5. The Tribunal would have had the opportunity to ask the applicant why he appeared to provide incorrect information to the Department in order to get a Subclass 500 (Student) Visa, despite the clear warning to him that giving false or misleading information is a serious offence and that if information is found to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

6. Accordingly, the Tribunal has decided to make a decision on the available evidence. 

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. On 16 May 2018, the delegate decided to cancel the applicant’s student visa. In this decision the term “visa holder” and the term “applicant” are used to describe Mr Youbin Chen.

9. Essentially, the delegate found that the applicant’s circumstances did not comply with sections 101(b) of the Act and, accordingly, cancelled the visa under s109 of the Act.

10. Section 101(b) of the Act states:

    101 Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    …

    (b) no incorrect answers are given or provided.

11. Section 103 of the Act states:

    103 Bogus documents not to be given etc.

    A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

12. On 8 August 2017 the applicant lodged an application for a Student (subclass 500) Visa that included the following information:

    On pages 7 and 8 of Form Application for a Student visa under the heading “Education” where it asked “Highest level of schooling” the visa holder stated the following, in italics:

    Highest level of schooling completed: Bachelor degree (including honours) or equivalent

    Course name: Bachelor of Commerce

    Institution name: University of Otago

    Country of institution: New Zealand

13. In association with this visa application the visa holder submitted a Bachelor of Commerce Certificate issued by the University of Otago which included the following details:

    Name: Youbin Chen

    Degree: Bachelor of Commerce

    Date of issue: 27 April 2017

    Signed: Lindsay J. Brown (Chancellor)

14. Based on the information the visa holder provided in support of his Student visa application he was assessed as meeting all the requirements and was granted a Student visa on 30 August 2017.

15. The delegate’s decision noted that the Department conducted integrity checks on the Bachelor of Commerce certificate the visa holder submitted in association with his Student visa application. Verification of this certificate using the University of Otago’s database of graduates found no record of the visa holder graduating from this university. Further checks revealed that Lindsay J. Brown who signed the certificate last performed the role of Chancellor at the University of Otago in 2008.

16. Given the above information obtained from the integrity checks, it appears that the visa holder has provided incorrect answers and submitted a bogus document which is counterfeit or has been altered by a person who does not have authority to do so as per paragraph (b) of section 5(1) of the Act, in his application for a Student visa because he did not graduate from the University of Otago.

17. The Tribunal accepts the above information and finds that the applicant did not comply with subsection 101(b) of the Act where he gave incorrect answers on pages 7 and 8 of his student visa application as indicate above, where he indicated that he had completed a Bachelor of Commerce at the University of Otago in New Zealand.

18. The Tribunal accepts the above information and finds that the applicant did not comply with subsection 103 of the Act where he provided a bogus document, that being the Bachelor of Commerce Certificate allegedly issued by the University of Otago dated 27 April 2017 signed by Lindsay J. Brown (Chancellor). 

19. Accordingly, the Tribunal finds that visa holder did not comply with subsection 101(b) and section 103 of the Act when he applied for the Student visa on 8 August 2017.

20. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder (the applicant) has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

21. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

22. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

23. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

24. Given the information before the Tribunal as indicated above, the Tribunal is satisfied that the applicant’s non-compliance was identified and particularised in the s.107 notice.

25. For these reasons, the Tribunal finds that there was non-compliance with section 101(b) of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

26. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

27. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    · the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

28. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

29. The Tribunal’s assessment of all the prescribed circumstances as set out in Regulation 2.41 is as follows:

    (a) the correct information

30. The correct information is that the visa holder did not graduate from the University of Otago with a Bachelor of Commerce at any time - ever.

31. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (b) the content of the genuine document (if any)

32. As indicated above, the visa holder submitted a Bachelor of Commerce certificate issued by University of Otago on 27 April 2017. The delegate’s decision indicates that the Department conducted integrity checks on the Bachelor of Commerce certificate using the University of Otago’s database of graduates and found no record of the visa holder graduating from this university, and that further checks revealed that Lindsay J. Brown who supposedly signed the certificate in 2017 last performed the role of Chancellor at the University of Otago in 2008.

33. Accordingly, as indicated above, the Tribunal finds that the applicant submitted a bogus document (the Bachelor of Commerce certificate purportedly issued by University of Otago on 27 April 2017), within the meaning provided at paragraph (b) of section 5(1) of the Act which states:

    “is counterfeit or has been altered by a person who does not have authority to do so”

34. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

35. The Tribunal finds that the decision to grant the applicant a student visa was based partly on incorrect information and partly on the bogus document as described above. The Tribunal finds that the delegate relied upon the study history the applicant provided to form a decision that the applicant was a genuine temporary entrant and satisfied the English language requirements.

36. Accordingly, the Tribunal finds that this information would have helped form the delegate’s decision that the visa holder had the intention of continuing his education in Australia as a genuine temporary entrant and that he would not be required to complete any further English language requirements for the grant of the visa.

37. The Tribunal gives this consideration high weight against the applicant.

    (d) the circumstances in which the non-compliance occurred (reg. 2.41(d))

38. The circumstances in which the non-compliance occurred are described above.

39. In summary, the circumstances in which the non-compliance occurred are that the applicant intentionally gave the Department false information and a bogus document in order to obtain his student visa.

40. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (e) the present circumstances of the visa holder (reg. 2.41(e))

41. The visa holder is currently lawfully onshore as a holder of a Bridging Visa E. He does not have any accompanying dependents on the student visa.

42. Accordingly, the Tribunal gives no weight in the applicant's favour.

    (f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958 (reg. 2.41(f))

43. The applicant provided incorrect information and a bogus document in his application for a student visa in order to facilitate a favourable migration outcome.

44. There is no indication that the applicant made any effort to correct the incorrect information provided to the Department or the Tribunal, apart from indicating that it was the fault of someone else who arranged the student visa for him. If the applicant had attended the hearing, the Tribunal would have had the opportunity to ask him for a further explanation. 

45. Accordingly, the Tribunal gives this no weight in the applicant's favour.

    (g) any other instances of non-compliance by the visa holder known to the Minister (reg. 2.41(g))

46. There is no other information before the Tribunal indicating other instances of non-compliance.

47. Accordingly, the Tribunal gives this no weight in the applicant's favour.

    (h) the time that has elapsed since the non-compliance (reg. 2.41(h))

48. The non-compliance occurred when the visa holder applied for the student visa on 8 August 2017.

49. The time that has elapsed since the non-compliance is now over two years.

50. The Tribunal finds that despite the time that has passed since the non-compliance occurred, the significance of the applicant’s deceptive behaviour is such that his behaviour represents a significant risk to the integrity to Australia’s migration system.

51. The Tribunal gives this consideration no weight in the applicant’s favour.

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches (reg. 2.41(j))

52. There is no information before me to indicate that the visa holder has breached any laws since the non-compliance.

53. The Tribunal gives this consideration no weight in the applicant’s favour.

    (k) any contribution made by the holder to the community (reg. 2.41(k))

54. There is no specific information before the Tribunal to suggest the applicant has made a contribution to the Australian community. Accordingly, the Tribunal gives this no weight in the applicant's favour.

55. The Tribunal’s assessment includes the following other matters.

    • Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

56. There are no persons in Australia whose visas would, or may, be cancelled under s140 of the Act. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

57. There is no information before the Tribunal to indicate the circumstances of this case are such that would engage Australia’s international obligations. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Whether there are mandatory legal consequences to a cancellation decision.

58. If the student visa is cancelled the applicant would become an unlawful non-citizen and could be liable for detention under s189 and removal under s198 of the Migration Act 1958 if he does not voluntarily depart.

59. In addition, the cancellation could also place a limitation under section 48 of the Act which means that the applicant will have limited options to apply for further visas in Australia.

60. In addition, the applicant will be prevented by a risk factor that may prevent him from being able to meet Public Interest Criterion 4013. As a result the applicant may not be able to be granted a further temporary visa for a period of three (3) years. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Any other relevant matters.

61. There are no other relevant matters for the Tribunal to consider.

62. The Tribunal finds the applicant’s actions in this situation to give foundation to the Tribunal’s finding that the applicant has no regard whatsoever for Australian migration laws and he is prepared to engaged in deceptive behaviour to achieve a favourable migration outcome. Accordingly, the Tribunal gives this consideration high weight against the applicant.

63. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

64. Having decided that under s108 of the Act that there was non-compliance in the way described in the notice issued under s.107 of the Act and having considered all the prescribed matters set out in regulation 2.41 of the Regulations, I find the reasons to cancel the visa outweigh the reasons not to cancel.  

65. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.